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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Brien v. O'Halloran [1999] IEHC 41; [2000] 1 IR 330 (16th November, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/41.html Cite as: [2000] 1 IR 330, [1999] IEHC 41 |
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BETWEEN
JUDGMENT of Kearns J. delivered on the 16th day of November, 1999
1. By High Court Order dated the 7th day of December 1998, Mr. Justice Smyth gave leave to the Applicant to apply by way of application for Judicial Review for the following reliefs:-
(a) An Order of Certiorari quashing the order of the First named Respondent dated the 24th day of November 1998 sitting at Abbeyfeale District Court convicting the Applicant of an offence under Section 49(2) and 6(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994.
(b) An Order of Certiorari quashing the summons initiating this prosecution dated the 8th day of September 1998 and returnable for Abbeyfeale District Court on the 23rd day of September 1998.
(c) A declaration as against the Third, Fourth and Fifth named Respondents that Article 6 of Statutory Instrument 376 of 1998, being"the District Court Districts and Areas (Amendment) and Variation of Days (number 5) Order 1998" is void, ultra vires and unconstitutional.
(d) Further an Order of Certiorari quashing the decision of the Third Respondent to invoke Article 6 of S.I. 376 1998 and further and in the alternative an Order of Certiorari quashing the decision of the Second Respondent making the entire Order".
2. The grounds or reasons upon which the application was based may be summarised as follows:-
(a) the District justice had no power to hear and determine the summons in respect of these offences, which said summons issued in the Listowel area but on its face was returnable for Abbeyfeale District Court, which said Court is situate in a different District Court Area and is not within one mile of the Listowel District Court Area. In the premises, the summons on its face is bad. In the premises, objection having been taken to jurisdiction on the 23rd day of September 1998 and on the 24th day of November 1998, the decision to hear and determine the matter and convict and impose a penalty was ultra vires, void and of no legal effect having regard to the provisions of the Courts Acts, the District Court Rules and the provisions of the Constitution.
(b) The District judge was presented with a summons that was entitled "Court Area of Listowel" but was returnable for Abbeyfeale District Court. This summons was bad on its face having regard to Order 13 of the District Court Rules, the provisions of the Courts (Supplemental Provisions) Act, 1961, the Courts of Justice Act, 1953 and the Courts of Justice Act, 1924. Abbeyfeale is not within the Listowel Court Area, nor is it within one mile of that area.
(c) The judge had not adjourned to Abbeyfeale but rather attempted to deal with the case at Abbeyfeale on the 23rd day of September 1998. Objection was at once taken to jurisdiction by the Solicitor for the Applicant who told the Court he was raising a jurisdiction point. The Applicant was entitled to have the matter determined at the first opportunity, this being a summary offence. The Applicant's Solicitor made the point that the judge had no jurisdiction to hear a Listowel case at Abbeyfeale and referred to the Rules and the Statutes. At this point in time, S.I. 376 of 1998 was not in force and the judge, wrongly and without jurisdiction and ultra vires decided that she had jurisdiction. The Garda Superintendent then applied to adjourn the case (without the consent of the Applicant) and the Court adjourned the case to Abbeyfeale on the 27th day of October 1998. The matter was further adjourned at the application of the Second Respondent until the 24th day of November 1998 to facilitate a Garda witness.
(d) On the 7th day of October 1998 the Third Respondent passed S.I. 376 1998 which amalgamated Listowel and Abbeyfeale in the same District Court Area and sought to retrospectively validate proceedings initiated but not completed prior to the commencement of the Order.
(e) When the matter was heard on the 24th day of November 1998, the Applicant's Solicitor attended to contest jurisdiction and again argued that the court had no jurisdiction. The District judge disagreed and proceeded to convict the Applicant, fining him [sterling]100.00 and [sterling]75.00 expenses and disqualified him from driving for a period of two years.
(f) The First Respondent erred in law in so making this decision and acted ultra vires and unfairly and in breach of natural and constitutional justice. Further the provisions of Statutory Instrument 376 of 1998 and in particular, Article 6
are retrospective penal legislation and are unconstitutional, void and have no legal effect having regard to the provision of Article 15 of the Constitution.
3. The Statement of Opposition delivered on behalf of the Respondents is essentially a denial of the validity of the submissions made.
4. It is further contended that a failure to comply with the provisions of Order 13 Rule 1 of the District Court Rules does not render the proceedings void or deprive the court of jurisdiction as implied. There is no statutory requirement that criminal proceedings must be heard in any particular District Area and a District judge is entitled pursuant of Order 12 Rule 25 of the District Court Rules to remedy such alleged defect and is entitled pursuant to the provisions of Order 13 Rule 4 of the same Rules to adjourn proceedings to another occasion.
5. It is further contended that on the 7th day of October 1998 the Third named Respondent passed Statutory Instrument 376 of 1998 and as a result validated the proceedings of returning and hearing Listowel cases at Abbeyfeale.
STATUTORY BACKGROUND
Section 67 of the Courts of Justice Act, 1924 provided for the setting up of the District Court for the whole of Saorstat Eireann and Section 77 of the same Act set out the jurisdiction of District Justices. Section 79 of the Act stated:-
"Provided that the jurisdiction by this Act vested in and transferred to the District court shall be exercised by the Justices severally as follows:-
In civil cases, by a Justice for the time being assigned to the District wherein the Defendant or one of the Defendants ordinarily resides or carries on any profession, business or occupation;
In criminal cases, by a Justice for the time being, assigned to the District wherein the crime has been committed or the accused has been arrested or resides;
In licensing cases, by a Justice for the time being assigned to the District wherein the licence premises are situate".
6. This provision must be read in conjunction with Section 3 of the District Justices (Temporary Provisions), Act. 1923 which provided:-
"(1) Immediately upon the passing of this Act, or as soon as conveniently may be thereafter, the Minister shall divide Saorstat Eireann (except the County of the City of Dublin and so much of the County of Dublin as is within the jurisdiction of the Divisional Magistrates of the City of Dublin) into convenient court districts and shall appoint one convenient place in each such district or within one mile from the boundary of such district at which the District court shall be held for such district."
Section 68 of the 1924 Act provided for the appointment of District Justices as soon as the Minister divided Saorstat Eireann into suitable Districts.
7. The further division of districts into "District Court Areas" was provided for
by Section 47 of the Court Officers Act, 1926 which provided as follows:-
"(1) The Minister shall divide every district prescribed by him under Section 68 of the Courts of Justice Act, 1924 (number 10 of 1924) into such and so many convenient areas (in this part of this Act referred to as District Court Areas) as he shall think proper and may divide any such district into different District Court Areas for the purpose of different classes of business transacted in the District court.
(2) The Minister shall appoint one or more convenient places in every District Court Area or within one mile of the boundary of such area in which, and such and so many convenient days and hours at which, the District court shall be held for the purpose of transacting for such District Court Area the business for the transaction of such area was delineated".
8. The question of District Court Areas was revisited in the Courts of Justice Act, 1953, in Part V thereof, where Section 21 provides as follows:-
"(1) The Minister may, if and when he thinks fit, by order -
(a) divide the State (apart from the Dublin Metropolitan District) into such and so many convenient areas (which shall be known as District Court Areas) for the purposes of the District court as he shall think proper, and he may divide the State into different District Court Areas for the purposes of different classes of business transacted in the District court, and
(b) appoint one or more convenient places in every District Court Area or within one mile of the boundary of such area in which, and such and so many convenient days and hours at which, the District court shall be held for the purpose of transacting for such area the business for which the area was delimited
(2) (a) the order may make provision for the continuation and completion of any business transacted in the District court which is initiated before the commencement of the order and is not completed before such commencement.
(b) for the purposes of this subsection, business transacted in the District court shall be regarded as being initiated on the day on which the summons, warrant, process or other originating document relating to it is issued.
(3) The District Court Areas created under subsection (1) of this Section shall
for all purposes take the place of and be substituted for the District Court Areas created under Section 47 of the Act of 1926, and references in any Act to District Court Areas in relation to the District court shall be construed
accordingly.
(4) The sittings of the District court for the transaction for any District Court Area of the business for which such District Court Area is delineated shall be held in the places, on the days and at the hours for the time being appointed therefore under this Act."
9. Section 26 of the 1953 Act vested in the Minister power to create, vary and abolish Districts and Areas.
10. Section 27 of the 1953 Act provided as follows at subsection (3):-
"It shall be lawful for a Justice to transfer or adjourn the transaction of any business of the District court in which he has jurisdiction to either -
(a) Another occasion at the place in which he was transacting such business at the time of such transfer or adjournment, whether such occasion is or is not a day and hour appointed, or
(b) To another occasion (whether such occasion is or is not a day and hour appointed) at some other place in his district which is a place appointed for the transaction of business of the District court, whether such business does or does not include the said business so transferred or adjourned".
The Courts (Supplemental Provisions) Act, 1961 provided as follows at Section 32 (1):-
"The Areas created under Section 21 (Repealed by this Act) of the Act of 1953 shall be the District Court Areas for the purposes of the District court."
11. It is also important to refer to the Courts Act, 1971, and in particular to Section 15 thereof which deals with the power of the District court to deal with urgent cases of summary jurisdiction and which provides as follows:-
"(1) Whenever the Minister is of opinion that early trial or disposal by the District court of summary offences of any specified kind is desirable, he may by order so declare and the provisions of subsections (2) and (3) of this Section shall have effect in relation to summary offences of any kind standing so specified in an order under this Section.
(2) A Justice of the District court in whose district an offence of a kind standing specified in an order in this Section is committed -
(a) shall have jurisdiction to deal with a case in any court area within his district and
(b) may hold a sitting of the District court within his district to deal with the offence at a place or time not standing appointed for the time being for the hearing of the case
(3) A summons issued in respect of an offence standing specified in an order under this Section may direct the appearance of the person named in the summons at any sitting (including a sitting of the kind referred to in subsection (2)(b) of this Section) of the District court within the District Court District in which the offence was committed and may be served personally at any time not less than two clear before the sitting".
12. It is common case that Listowel and Abbeyfeale, prior to October 1998, lay within the same district but within different District Court Areas as defined by the legislation. The relevant originating District Court Area Order so providing was made by the Minister for Justice in 1961 (S.I. Number 5 of 1961) and the relevant schedule references are 114 (Listowel) and 146 (Abbeyfeale).
13. Order 13 of the District Court Rules, 1997 provides as follows:-
"1. Criminal proceedings shall be brought or heard and determined either-
(a) in the Court Area wherein the offence charged or, or if more than one offence is stated to have been committed within a judge's district, any one of such offences is stated to have been committed; or
(b) in the Court Area wherein the accused has been arrested, or
(c) in the Court Area wherein the accused resides, or
(d) in the Court Area specified by Order made pursuant to the provisions of Section 15 of the Courts Act, 1971.
2. Where the proceedings are in respect of indictable offences, such proceedings may be dealt with in any Court Area within the judge's district.
3. Where the proceedings are in respect of summary offences and the accused is in custody and is unable to give bail for his or her appearance at a sitting of the court such proceedings may be heard and determined in any Court Area within the judge's district.
4. Noting in this Order shall limit the power of a judge to adjourn a case from one Court Area to another, nor restrict any statutory power conferred upon or vested in a judge to exercise his or her jurisdiction in any Court Area other than in one of those mentioned in this Order."
14. Order 12, Rule 25 further provides:-
"Non-compliance with any of these Rules shall not render any proceedings void, but in case of such non-compliance the judge may direct that the proceedings be treated as void, or that they be set aside in part as irregular, or that they be amended or otherwise dealt with in such manner or upon such terms as the judge thinks fit."
15. S.I.376 of 1998 became operative on the 7th day of October 1998.
16. This Order was made for the specific purpose of addressing the problem arising in respect of the Courthouse in Listowel which was in an unfit condition and provided that the Listowel District Court Area be subsumed into the District Court Area of Abbeyfeale.
17. It further provided at Article 6 as follows:-
"Business transacted in the district court which is initiated and not completed before the commencement of this Order shall be continued and completed as if this Order had been in force at the time at which such business had been initiated."
18. It will be seen therefore that the summons in this case was issued prior to the making of this Order and was returnable for hearing at Abbeyfeale for the 23rd day of September, 1998, again at a time prior to the making of the said Order. It is further apparent, that by virtue of the two adjournments ordered by the district judge that there was, in November 1998, jurisdiction to deal with business fromListowel at Abbeyfeale District Court.
APPLICANT'S SUBMISSIONS
19. The Applicant contends that while the Courts of Justice Act, 1924, Section 79, provides general jurisdiction for a District judge throughout his district, the Courts of Justice Act, 1953, and the Areas Orders made thereunder, have the effect of restricting that generaljurisdiction in a particular way in the sense that these Orders require the judge to deal with any particular case in the appropriate District Court Area.
20. His position, he says, is on all fours with that addressed in the State (Reilly) -v- the Circuit Court Judge of the Midland Circuit and the District Justice for the District Court Area of Portlaoise (1936) I.R. 372.
21. In that case the Defendant was served with 13 complaint summonses to pay the amount of 13 surcharges, certified by the complainant to be due by him to a Board of Health. The Defendant lived in the District Court area of Abbeyleix and the summonses commanded him to appear at the District Court for the Portlaoise District Court area. The Defendant contended that the District Justice had no jurisdiction to hear the summonses as they were brought in the wrong District Court area. The District Justice overruled the objection, heard the summonses and made orders against the Defendant for the payment of the sums claimed. The Defendant appealed to the Circuit Court judge who affirmed the orders of the District Justice. The Defendant obtained a conditional Order of Certiorari to quash the orders of the District Justice and of the Circuit court judge. It was subsequently held by the High Court that the conditional order must be made absolute as the District Justice had no jurisdiction to hear the summonses in any District Court area other than that in which the Defendant ordinarily resided or carried on any profession, business, or occupation.
22. Hanna J., stated as follows at p.378:-
"It has been suggested that the question here is one of procedure only, but such a question as this cannot be disposed of under so general a term as "procedure". It is obvious that rights may be, and have been in this case, conferred upon Defendants in respect of the forum and territorial area of the forum in which they may be impleaded. The effect of Section 47 of the Act of 1926 with Rule 4 of the District Court Rules and the Minister's Order (Number 102 of 1927) and the general jurisdiction created by Section 79 of the Act of 1924 was to erect each District Court Area as the separate territorial unit within which the District Justice should discharge his duties. So it seems, prima facie, that this is a matter of right in the Defendant, disregard of which, if there is no other defence to his application for an Order of Certiorari would entitle this Court to quash the orders of the District Justice. Incidentally, before dealing with the points raised by the Respondents, Rules 4 and 63 of the District Court Rules must be considered. Each gives the District Justice power to transfer any case from one Court area to another. In my opinion, that power of transfer applies only to cases properly before the Justice, and not to a case not properly before him, unless with the consent of the Defendant. Accordingly, Rule 186 which empowers a District Justice to deal with irregularities cannot apply to a case where the proceedings are void for the reasons that they were brought wrongly and in the wrong forum."
23. It is further submitted when the objection to jurisdiction was made by the Applicant's Solicitor that the District Justice had no power to adjourn or to take any step in the proceedings other than to strike them out. The Applicant states that there is nothing in the Respondent's Affidavit to indicate that the District Justice sought, even if so entitled, to apply either Order 12, Rule 25, or Order 13, Rule 4 of the District Court Rules. In any event, she had no jurisdiction to do so because the Rules could not supply a want of jurisdiction.
24. Any question of adjournment or transfer can only apply to cases properly before the Court and not to a case not properly before the Court unless with the consent of the Defendant.
25. It is further submitted that Section 15(2)(a) of the 1971 Act would not have been enacted if there was already a jurisdiction in a Justice of the District Court to deal with an offence other than in the appropriate District Court area. The same significance is to be attached to Order 13 of the 1997 District Court Rules which provides that criminal proceedings shall be brought, heard and determined either :-
"(1) in the Court area wherein the offence charged, or, if more than one offence is stated to have been committed within a Judge's District, any one of such offences is stated to have been committed"
26. Again, the Applicant submits it would have been unnecessary to so provide under the Rules if a District Judge could deal with business in any District court area within his District.
RESPONDENTS' SUBMISSIONS
27. The Respondent submits that the summons in this case was duly applied for in the sense that an Application for a summons was made to the appropriate District court office, i.e. Listowel, as required by Section 1 of the Courts (No 3.) Act, 1986. Further, it is submitted, it is important to bear in mind that a summons is merely a procedure for compelling the attendance of a person accused of an offence. As was pointed out by Kingsmill Moore J., in A.G. (McDonell) -v- Higgins (1964) I.R. p. 391:-
"Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to compel the attendance of the person accused of the offence... R. (U.D.C. of Athy) -v- Justices of Kildare (1912) 2 I.R. 76; R. -v- Justices of Cork (1898) 2 I.R. 694.
It is equally clear that if a person is in court, voluntarily, or involuntarily, legally or illegally, an information or complaint may be made then and there "ore tenus" to the Justice, accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients, the person may at once be charged with the offence."
28. Because Listowel Court House was not in a fit state to be used, the summons was made returnable to a sitting of Listowel Court in Abbeyfeale Court House. It was made returnable for a date in September, on which date Judge O'Halloran decided to adjourn the matter, and despite the Applicant's Solicitor making objection that she lacked jurisdiction, the case was subsequently and properly heard on the 24th day of November. It was properly heard because a complaint only comes before the judge on the day the case is actually heard. On the 24th day of November 1998, JudgeO'Halloran, having properly adjourned the matter under her jurisdiction conferred by the 1924 Act, was then free to deal with and determine the matter because of the making of a Ministerial Order in the interim.
29. By that time, Statutory Instrument No. 376/1998 had taken effect. It provided for the abolition of the District Court area of Listowel and by Article 6 expressly provided that business initiated and not completed before the commencement of the Order should be continued and completed as if the Order was in force at the time when such business had been initiated.
30. It is submitted that it is Section 79 of the 1924 Act, rather than any provision of the 1953 Act, which creates jurisdiction in criminal cases. The 1924 Act provides for jurisdiction to be exercised by a judge of the District Court "in criminal cases, by a (judge) for the time being assigned to the District wherein the crime has been committed or the accused has been arrested or resides". It is argued that this provision has not been expressly qualified by any statutory provision referring to District Court Areas. A hearing in the wrong area is, therefore, a breach of rules only and State (Reilly) was, for that reason, wrongly decided.
31. Further, Section 27 (3) of the Courts of Justice Act, 1953 provides that it shall be lawful for a judge to transfer or adjourn the transaction of any business to another occasion or at some other place in his district which is a place for the transaction of business of the District Court. There is no requirement that such transfer or adjournment take place at an actual sitting of the District court.
32. If in error on those two points it is submitted that Order 13 Rule 4 of the 1997 District Court Rules permitted the District judge to adjourn this matter as she did when it provides as follows:-
"Nothing in this Order shall limit the power of a judge to adjourn a case from one court area to another, nor restrict any statutory power conferred upon or vested in a judge to exercise his or her jurisdiction in any court area other than in one of those mentioned in this order".
33. Also, it is submitted, Order 12 Rule 25 states that non compliance with the District Court rules does not render proceedings void.
CONCLUSIONS
34. Woods (District Court of Practice and Procedure in Criminal Cases) (1994 Ed.) deals with the question of exercise of jurisdiction by district court judges at p.p. 24 - 30.
35. He begins by saying at p.24:-
"There are two major constraints in the exercise of jurisdiction by a district court judge, one is territorial and the other relates to practice and procedure. A judge must exercise his jurisdiction at a location where he has jurisdiction to deal with a case and, as regards pleading, practice and procedure in the manner provided by Rules of Court."
36. At p.26 he deals with the question of venue for criminal proceedings, stating as follows:-
"The Courts of Justice Act, 1924, S.79 provides the jurisdiction of Criminal Cases shall be exercised by a judge for the time being assigned to the district wherein the crime has been committed or the accused has been arrested or resides.
However, the effect of the Areas Orders made under the Courts of Justice Act, 1953, is to impose on that general jurisdiction a territorial limitation requiring the judge to deal with any particular case in the appropriate District Court Area. See The State (Reilly) -v- C.J. For a Midland Circuit and another (1936) I.R."
37. He cites the same authority when at p. 28 he states:-
"Where proceedings are brought on the wrong Court Area the judge cannot cure the matter by adjourning the proceedings to the proper Area because the proceedings are not properly before him the first instance, nor is the matter capable of being dealt with under his powers of amendment in cases of non-compliance with the Rules because the proceedings are void ab initio."
38. The author goes on to deal with the District Court Rules, stressing that the same relate to practice and procedure which are seen by him as distinct from any question of jurisdiction.
39. It seems clear that before a district judge can deal with a matter in any way, he must be satisfied he has jurisdiction. That such a requirement exists even for the purpose of adjourning matters seems clear from a reading of Section 27(3) of the Courts of Justice Act, 1953 (set out fully at p. 8 hereof) where it is provided by Subsection 3:-
"It shall be lawful for a Justice to transfer or adjourn the transaction of any business of the District Court in which he has jurisdiction (my emphasis)to either....another occasion at the place....or at some other place....."
40. The Respondent submits that Section 79 confers a jurisdiction on a district judge throughout his district and that such a jurisdiction must include the right to adjourn a matter to another time or place.
41. However, as pointed out by Hanna J., in The State (Reilly)(p.378):-
"If that Section 79 stood alone it would appear to confer universal territorial jurisdiction within the district, but, delineated as it is by Section 47 of the Act of 1926, the result is the creation of an exclusive District Court Area in which there must be transacted the business as to Defendants who are ordinarily resident in such a District Court Area."
42. It does seem odd that the creation of District Court Areas, being lesser parts of an entire district, has the effect of cutting down (with some exceptions) the jurisdiction of the District Court, but there can be no legal objection in principle to the fact that legislation changes or restricts geographical areas of jurisdiction created by earlier legislation, given that both are products of statute.
43. The underlying policy was hinted at by Hanna J., at p. 378 when he said:-
"It would be difficult to express exactly what is the relation which any one District Court Area has to the entire of the District Court, but it would seem to have been a territorial limitation which was placed on the District Justice in the interest of Defendants."
44. He also stressed (at p.379) that Section 79 (of the 1924 Act) deals only "with the personality of the Justice who is to try a case".
45. The Respondent submits that this court should not follow the reasoning of State (Reilly) because it was based upon Section 47 of the Courts Officers Act, 1926 which has been repealed. However, the same distinction between District Court Areas and Districts existed then as it does now. It seems a well reasoned authority on all fours with the instant case.
46. If I were in any doubt about the matter, Section 15 of the 1971 Courts Act (which deals with urgent matters) contains a provision which would be quite superfluous if the Respondent's submission in this case was correct.
Section 15(2) provides:-
"A Justice of the district court in whose district an offence of a kind standing specified in an Order under this Section is committed -
(a) shall have jurisdiction to deal with a case in any Court Area within his district".
47. Subsection (3) further provides:-
"A summons issued in respect of an offence standing specified in an Order under this Section may direct the appearance of the person named in the summons at any sitting (including a sitting of the kind referred to in Subsection (2)(b) of this Section) of the district court within the District Court District in which the offence was committed and may be served personally at any time not less than two clear days before the sitting."
48. While this Subsection is partly concerned with time, both it and Subsection (2) also deal with geographical considerations which would be quite superfluous if there was already a power to do what is provided for by the subsection.
49. Accordingly, I am satisfied the District Judge had no jurisdiction to do anything other than strike out this summons when objection was taken to jurisdiction in September 1998.
50. I am equally satisfied that the provisions of the District Court Rules, 1997, cannot be invoked in aid in a situation where there is a complete lack of jurisdiction. Again, if I am mistaken in this view, there is no evidence that the District Judge did in fact apply these rules in deciding to adjourn the matter.
51. Insofar as the provisions of S.I.376 of 1998 are concerned, they can only relate to business which is properly initiated and outstanding prior to the commencement of the Order. They could not be interpreted as making good a want of jurisdiction.
52. Therefore, while I accept that a defect in a summons can be cured when the Defendant appears before the court and that the summonsing procedure exists purely to bring that person before the court, the assumption must always remain that the court venue is then one where the court has jurisdiction to amend or otherwise deal with the case. The statutory instrument cannot supply a jurisdiction where none previously existed so as to breathe legal life into void proceedings.
53. If there were any doubt about that, the well established bias of the courts and the law generally against retrospective application of legislation, particularly in criminal matters, must inevitably lead to the same conclusion.
Dated this 17th day of November 1999.
Signed Nicholas J. Kearns.
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